UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-31290 Summary Calendar _____________________

WILLIE C. GEORGE,

Plaintiff-Appellant,

versus

POLICE DEPT. OF HAYNESVILLE; KEITH MILLS; VINCENT SMITH; WILLIE EVANS; KELVIN KILPATRICK; MARY LOGON GEORGE,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (96-CV-867) _________________________________________________________________

February 2, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Willie C. George (#224037) appeals, pro se, an adverse summary

judgment (Defendants Mary Logon George, discussed infra, and Kelvin

Kilpatrick were earlier dismissed as not being state actors.

George does not challenge that ruling. The remaining Defendants,

at issue here, are the police department and three of its

Officers.)

First, he contends that the district court abused its

discretion by permitting Defendants to refile their summary

judgment motion. This issue is without merit.

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. "A party against whom a claim ... is asserted ... may, at any

time, move with or without supporting affidavits for a summary

judgment...." FED. R. CIV. P. 56(b) (emphasis added). This is in

keeping with the civil procedure rules being “construed and

administered to secure the just, speedy, and inexpensive

determination of every action”. FED. R. CIV. P. 1. For obvious

reasons, we defer ordinarily to the district court in the

management of its own docket. See Union City Barge Line, Inc. v.

Union Carbide Corp.,

(5th Cir. 1987).

George contends that the magistrate judge's minute entry

requiring Defendants only to refile a summary judgment motion and

the magistrate judge's recommendation that Defendants’ first

summary judgment motion be granted indicates that the magistrate

judge was unfairly biased. A judicial ruling will support a claim

of bias only if it reveals an opinion based on an extrajudicial

source or demonstrates “such a high degree of favoritism or

antagonism as to make fair judgment impossible”. See Liteky v.

United States,

(1994). Adverse rulings, alone,

do not call into question a judge's impartiality.

Next, George maintains that the defendant Officers entered his

home illegally; and that the district court erred in concluding

that there were no material fact issues regarding this point.

Officer Mills was authorized to enter the house by Mary George.

Police may rely on the voluntary consent of a person holding common

authority over the place to be searched. Illinois v. Rodriguez,

(1990). George asserts that Mary George did not

2 give the Officers permission to enter; but, he does not have

personal knowledge of this fact and he has not presented summary

judgment evidence showing that there is a genuine issue whether

Mary George authorized the entry.

Finally, George claims that the district court erred in

granting summary judgment dismissing his excessive-force claim.

The Fourth Amendment governs such claims concerning force used

during an arrest. Spann v. Rainey,

(5th Cir.

1993). To establish such a claim, a plaintiff must prove by a

preponderance of the evidence: (1) an injury; (2) which resulted

directly and only from the use of force which clearly was excessive

to the need; and (3) that the excessiveness of the force was

objectively unreasonable.

The arresting Officers' affidavits

establish that, when Officer Mills entered the residence, he was

attacked by George with an axe; and that Mills struggled with

George until Officers Evans and Smith arrived and assisted Mills in

placing George under arrest. The summary judgment evidence

submitted by George shows only that he suffered an injury during

the arrest; and that he was admitted to the hospital for treatment

of the injury. George has not established that there is a material

fact issue whether the force used was unreasonably excessive.

AFFIRMED

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